Suchergebnisse

Collection institutions (Libraries, Archives, Galleries, and Museums) are responsible for storing and preserving large amounts of digital data, which can range from historical/public figure records, to state or country- wide events. The ingest process often requires sifting through large amounts of data which may not always be sorted or categorized from the source/donor. It is possible to discover information that was not intended to be disclosed should the donor not be privy to the existence of said material. This issue is typically handled by communicating with the donor, however, if they have no relation to what has been uncovered in the data, further steps may need to be taken. If the data belong to or are about someone living, that person may need to be contacted, depending on the nature of the data discovered. If the person of interest is no longer living, legally there would no issue disclosing all information uncovered, how- ever, implications for living relatives must be considered should the disclosed information be potentially revealing or harmful to them. This can include hereditary health issues, political or religious views, and other sensitive in- formation. There are significantly more variables to con- sider, such as public interest and defamation which can heavily impact the decision process following the discovery of sensitive data, all whilst guided, but not necessarily enforced by law. This remains somewhat of a gray area as the entities handling such data are often exempt from these laws and principles, making these decisions ethically and morally based more so than legally. In this article, the Australian laws and policies that surround privacy issues, defamation, and data relating to Aboriginal and Torres Strait Islander people and culture are explored. The aim is to raise awareness on potential issues that may arise in collection institutions as well as potential threats already sitting in storage and the laws and policies that may serve as guidelines to help overcome/mitigate such ...

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England.

Developments in Australian law over the last 40 years have allowed transgender persons a greater level of autonomy when it comes to establishing their legal gender. The shift in some jurisdictions from employing a strict biologically-based test for determining gender identity to adopting a multifactorial approach based on a broad range of relevant factors has enabled a greater number of individuals to gain legal recognition of their preferred gender. This article traces the development of a gender identification test at common law. It explores Australian federal and state legislative schemes and draws attention to the inconsistencies between jurisdictions. It also highlights the impact that these statutory variations may have upon transgender individuals. Parts I, II and III discuss the current approach to regulating gender identity at common law and via legislation. Part IV discusses the impact of these laws on transgender people and highlights the need for all Australian jurisdictions to adopt a uniform approach to gender identification.

This paper articulates the human rights violation of the minority group of Aborigines Community in Australia. Australia has ratified the International Committee for Elimination of Racial Discrimination (ICERD), and the International Covenant on Civil and Political Rights (ICCPR), and other human rights doctrines that protect the rights of Aborigines and Torres Strait Islanders; however the Government of Australia from its inception have done little to ensure that those political protections are effective in ensuring the genuine protection of the rights of indigenous peoples. Most frequently cited is the failure of international laws to ensure the land and self-determination rights of these peoples. However, domestic law could undoubtedly ensure that these rights are in place, if the desire to do so is present within the Australian government.

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and 'husband and wife', the wider term 're-partnering' is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1 Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the 'standard' adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent.

This thesis examines the law and practice concerning two key policies directed at asylum seekers who arrive or attempt to arrive in Australia by boat; immigration detention and offshore processing. It is comprised of four parts. Part 1 provides an overview of the thesis, consolidating the published material with reference to political theory. A summary of the chapters is provided in Part II. Part III considers the contribution maoe by my work to the literature on asylum seeker policy in Australia. The main body of the thesis is contained in Part IV, which is comprised of 11 papers published between 2004 and 2013. ·

Proportionality has been used as an analytical method in the constitutional jurisprudence of courts around the world, including in Australia. The method has not, however, been free from controversy. Since its first introduction into Australian constitutional law, there have been debates regarding the appropriateness of proportionality testing in this context.To date, these debates have been lacking in one important respect: they have not been sufficiently grounded in theory. In times when the global literature on the subject was relatively nascent and applications in comparative constitutional contexts sparse, the under-theorisation of Australian proportionality was understandable. This is no longer the case. The burgeoning international literature and jurisprudence in this field has in recent years generated a rich body of judicial and academic thought from which to elicit a properly theorised consideration of proportionality. Drawing on these resources, this thesis proposes a theoretical framework for proportionality. It uses this framework to explore a key question in the Australian context: when is proportionality an appropriate analytical tool in constitutional jurisprudence? In examining this question, the thesis considers the primary concerns regarding the appropriateness of proportionality in Australian constitutional law and how these might be addressed. It also makes principled suggestions for the development of Australian doctrine.

Rhetoric on the topic of Australian citizenship has widely emphasised its significance, particularly as a source of important rights and corresponding obligations. Despite this, as many commentators have noted, the constitutional limits of Parliament's power over citizenship remain unsettled, and the rights and obligations that legally distinguish citizens from non-citizens are not easy to identify. This thesis is motivated by a desire to determine the extent to which claims about the significance of Australian citizenship are reflected in its reality, as a legal concept.There are three dimensions in which the legal concept of Australian citizenship is shaped: constitutional law, statute law and the common law. The thesis conducts a doctrinal study driven by two questions: First, what are the parameters of citizenship, and what rights and obligations are generated for citizens, within each of the three dimensions identified? Secondly, to what extent do the three dimensions intersect in a manner that helps to inform the legal meaning of Australian citizenship?The study finds that, within each individual dimension, silences and ambiguities limit the potential for a cohesive notion of citizenship that gives rise to clear rights and obligations to emerge. However, it demonstrates that, by paying close attention to the intersections between the three dimensions, it is possible to arrive at a conceptualisation of Australian legal citizenship that is more cohesive than the law within any individual domain would suggest. The thesis illustrates one way in which the intersections between the different citizenship dimensions might be coherently resolved. This is by no means the only interpretation available, nor does it provide an answer to every question that has plagued citizenship law in Australia. However, it serves as an indication of the potential for a clearer notion of Australian legal citizenship than that which exists at present to be developed through focus on the connections between existing conceptualisations of citizenship.Note: There have been a number of very recent changes and proposals for change in the area of citizenship law, both in Australia and in foreign countries. I have endeavoured to incorporate these developments into this thesis, as far as possible. The state of the law reflected in the thesis is, to the best of my knowledge, correct as at March 10 2015.

This thesis considers the management and performance of Australian superannuation funds in the period since the introduction of compulsory superannuation contributions in 1991, and the institutional history of the decisions that led to the current position. It highlights principal-agent failures in the Australian superannuation system (contributing to rent extraction via excessive fees and charges) and asymmetric information (which has permitted conflicts of interest to be exploited and also facilitated rent extraction). Design of the system has led to the majority of members to be in defined contribution schemes, rather than defined benefit, which has transferred the risk of underperformance from fund sponsors to (less well informed) members.The thesis also explains how current structure and organisation of the industry resulted from the decision to introduce compulsory superannuation contributions (thus creating huge funds to be managed), acceptance by unions, trustees and government that the private sector should manage the majority of these funds, and extensive outsourcing and delegation of responsibility and authority. The resulting complexity, and in particular the multi-layered nature of the industry, has led to a degree of separation between the ultimate beneficiaries of superannuation funds and those who make decisions on their behalf.The costs and performance of the system are analysed using cost, performance and financial data at the fund level published by APRA, and an international database of US, Canadian and European funds. Simulation modelling suggests that fund assets might now be several hundred billion dollars greater if they had been invested passively in a single fund. International comparison shows higher costs and lower efficiency than oveseas funds, highlights the superior performance of passive management, and demonstrates the superior performance of passively managed funds.Suggestions for reform include enabling proper competitive pressures to emerge, full disclosure of all investment management costs and conflicts of interest, creation of a single regulatory agency with a clear remit to improve the efficiency of the industry and a primary duty to promote competition, stronger use of trust law to enforce the fiduciary duties of trustees, and creation of a publicly administered agency which offered a centrally-administered, passively managed, alternative fund.

The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia's most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law. Alan Freckelton has worked with the Migration Law Program since 2008. Through personal recollections and a comprehensive analysis of administrative decision-making, he brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

Following the terrorist attacks of September 11, 2001, the Australian government embarked on an anti-terror legislative agenda that prioritised the prevention of terrorism. Many of Australia's preventive anti-terror laws were justified as exceptional and isolated measures to meet the exceptional threat posed by transnational terrorism. This thesis is motivated by a desire to better understand prevention in anti- terror law and, in particular, how preventive anti-terror laws should be understood and situated within the Australian legal system.The driving questions of this thesis are: is the preventive state concept a useful way to read developments in Australian law following September 11? Is prevention in Australian anti-terror law exceptional when compared to prevention in other areas of Australian law? This thesis answers these research questions in a narrow way. It begins by critically examining the preventive state concept, identifying its promise and limitations as a way to read prevention in contemporary lawmaking. The thesis then undertakes three case studies of preventive measures in Australian law: federal anti-terror control orders, post-sentence restraints on high risk offenders in NSW and involuntary detention of persons with mental illness in NSW.The purpose of the case studies is to test whether control orders are novel when compared to other preventive measures. This is achieved by comparing where each legislative regime falls on a spectrum of anticipatory action in domestic law. The case studies also inform understandings of the preventive state concept by addressing its promise and limitations as a framework to read developments in Australian law.This thesis concludes that the preventive state concept provides a useful way to read and conceptualise developments in Australian law since September 11. It identifies a number of continuities between the preventive measures studied, arguing that control orders are best understood as part of a pattern of preventive governance rather than as exceptional and isolated measures. However, this thesis also finds that control orders are exceptional in their reach when compared to the other measures studied, typifying pre-emption rather than prevention. These findings have broader implications for understandings of preventive anti-terror laws and the future directions of preventive scholarship in Australia.

After 11 September 2001, the protection of national security became a high-stakes issue in Australia and internationally. The Australian Government commenced a far-reaching legislative agenda to update its national security laws. Described by a former attorney-general as 'an unfinished canvas', the national security legislative framework included communications–sector specific legislation, directed at the national interest obligations of communications industry stakeholders. This thesis examines the governance of national security in the Australian communications sector, with the aim of contributing to legal knowledge by examining the entrenched governance networks, structures and processes for coordinating national security law and policy in the Australian communications sector and accurately characterising the compact—some might call it the 'accord'—between industry and government. A normative concern relating to the fate of democratic scrutiny in the specified context is investigated. The thesis draws on a governance theory perspective and uses a multiple case study approach. The thesis concludes that the coordination of national security law and policy in the Australian communications sector is best understood as corporatist governance. The research reimagines the Australian industrial relations Accord of the 1990s by framing the relationship between the state and industry as corporatist. The implications, both practical and abstract, of this relationship for liberal democratic institutions and democratic scrutiny are considered. The thesis concludes that, whereas co-regulatory and self-regulatory mechanisms may be efficient and effective, corporatist governance poses a threat to democratic scrutiny when the accord between industry and government is wholly functional and operating in its natural state of exclusivity, confidentiality and secrecy, under the cloak of national security. Corporatist governance is least risky to democratic scrutiny when the accord is not fully formed, or is easily broken—then, the strong democratic traditions of the 'fourth estate', the rule of law, parliamentary scrutiny and judicial oversight, may play a role in the coordination of national security law and policy in the Australian communications sector.

At head of title: Notified in A.A.Os. dated 31st January, 1941. ; "Including Army Act and Rules of Procedure as modified and adapted by the Defense Act 1903-1939 and the Australian Military Regulations." ; Includes bibliographical references and index. ; Mode of access: Internet.

For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird's eye view of the current state and the future of law reform in Australia.

The question driving this thesis is how should the separation of federal judicial power, derived from Chapter III of the Australian Constitution, be interpreted to best achieve the independence and impartiality of federal courts? The interpretation of Chapter III is as hotly debated as it is fundamentally important. Two key viewpoints have emerged in this debate: formalism and functionalism. A formalist test – strictly separating government powers according to definition – limits the permissible powers of federal courts. A functionalist test – hinging validity on whether a power is incompatible with institutional independence and integrity – limits the powers of State courts and of judges in their personal capacities ('personae designatae'). A rare point of consensus between the two viewpoints is that the separation of judicial power derived from Chapter III should be interpreted in a manner that achieves its core purpose. This thesis identifies this purpose as judicial independence and impartiality and queries which interpretive approach can best achieve this aim, with a view to contributing to contemporary debates and guiding future developments in the area. The central argument of the thesis is that a new, hybrid approach called purposive formalism presents a legitimate and preferable interpretation of Chapter III, better able to achieve judicial independence and impartiality than either the existing formalist or functionalist tests. The thesis tests the strengths and weaknesses of formalist, functionalist and purposive formalist interpretations of Chapter III in two case studies. The first case study concerns powers conferred on federal courts under the anti-terrorism control order provisions of the Commonwealth Criminal Code (the 'Code'), and contrasts formalist and purposive formalist approaches to assessing the Chapter III validity of these provisions. The second case study concerns similar powers conferred on judges personae designatae under the anti-terrorism preventative detention order provisions of the Code, and assesses the relative strengths and weaknesses of purposive formalism and the functionalist incompatibility test in this context. The study as a whole reveals serious weaknesses in the existing approaches. Purposive formalism is consistently supported, not as a perfect or ideal approach, but certainly as a preferable interpretation of Chapter III better able to achieve the independence and impartiality of federal courts.